COURT OF APPEAL FOR ONTARIO
DATE: 20060505
DOCKET: C40321
RE: HER MAJESTY THE QUEEN (Respondent) – and – ZELIMIR BIORAC (Appellant)
BEFORE: GOUDGE, GILLESE and LaFORME JJ.A.
COUNSEL: Vincenzo Rondinelli for the appellant
David Carruthers for the respondent
HEARD & RELEASED ORALLY: May 4, 2006
On appeal from the decision of the summary conviction appeal court dated June 23, 2003 by Justice Patricia C. Hennessy of the Superior Court of Justice, allowing the Crown appeal from the stay of proceedings entered on March 6, 2002 by Justice Yvon Renaud of the Ontario Court of Justice.
E N D O R S E M E N T
[1] The entire time, from a charge to the application for stay, was approximately 23 months. The Crown throughout has properly conceded that it warrants scrutiny under 11(b) of the Charter and that there were no expressed waivers by the appellant of his Charter rights. We would dismiss the appeal for two reasons.
[2] First, the trial judge approached his analysis for delays occasioned by adjournments after the trial commenced, by first determining whether the delay ought to be attributed to the defence, and if it was not, he treated it as either attributable to the Crown or to the institution. We agree with the appeal judge that this was an error. In taking this approach the trial judge failed to consider those matters that might be neutral. For example, the difference in obtaining first trial dates and that of obtaining trial continuation dates: R. v. Allen, 1996 4011 (ON CA), 1996 110 C.C.C. (3d) 331 (On. C.A.) affirmed 1997 331 (SCC), [1997] 119 C.C.C. (3d) 1 (S.C.C).
[3] Second, the appeal judge was correct when she held that the trial judge was in error in presuming prejudice in this case. Any prejudice to the appellant was minimal, and there was no evidence at all on the question of actual prejudice.
[4] Once the appeal judge identified the errors made by the trial judge she was then obliged to decide whether the delay was unreasonable. We can find no reason to interfere with her decision in this regard.
[5] For these reasons, leave to appeal is granted but the appeal is dismissed.
“S.T. Goudge J.A.”
“E.E. Gillese J.A.”
“H.S. LaForme J.A.”